A forum for associates to speak out about law firm issues

Game changers

Yesterday, along with millions of Americans, I was sitting at home watching the Superbowl. At halftime, the score was 10-6 in favor of the Colts. It had been a decent first half to watch, with spot-on lasers fired by both Peyton Manning and Drew Brees. But it was just good solid football played at the highest level. No major mistakes by either team, no huge penalties at the worst possible time, no interceptions or fumbles or spectacular kickoff returns. Just x’s and o’s executed to perfection.

As kicker Thomas Morstead got ready to kick to the Colts to start the second half, I was reaching for the chips and salsa. I never made it. My hand remained frozen in the air as, to my utter surprise, Morstead executes a perfect on-side kick, the football bounces off Indy receiver Hank Baskett, and the Saints recover in a mad pile-up.

Wow. Talk about a game-changer. The Saints capitalized on the stunned Colts, whose defense was certainly not prepared to be on the field to start the second half, marching 60 or so yards for a touchdown and the first Saints lead of the game. Instead of Manning being on the field leading his team to what would have likely been a 17-6 lead (insurmountable from the perspective of Super Bowl history, where the greatest deficit overcome was 10 points), instead the Saints were now ahead 13-10.

Sure, it was risky, but it was a calculated risk. An onside kick had never been attempted prior to the fourth quarter in any Super Bowl, and it was just not what the Colts’ receiving unit was expecting. The element of surprise (or shock) can sometimes pay huge dividends.

What game changers do lawyers employ on the legal gridiron to shift momentum in their direction? In litigation, which presents a natural adversarial environment, it’s easy to draw comparisons. Depositions afford counsel with the opportunity to make odd requests or crazy objections simply to try to rattle the other side–sometimes even before the deposition begins. Threats to leave the deposition or call a judge often work to intimidate the other side. Lengthy or numerous objections work to disrupt the flow of questioning.

These tactics carry risk, of course. They can backfire, for example, if opposing counsel calls your bluff and you aren’t in fact ready to walk out of the deposition or call a judge (or don’t have a valid basis for doing so). Lawyers constantly push the envelope in order to maintain the element of surprise, but sometimes such behavior violate ethics or rules of professional conduct. At times, lawyers get away with it, but be prepared for the consequences if the other side responds.

Game changers can be a powerful tool when used properly. They can alter the dynamics of a legal battle, and shift momentum in the eyes of the judge.

What game changers have you attempted? Did such a game changer affect the course of litigation? For those of you in the corporate law world, what types of game changers exist?